Prisoners don’t cease to be parents

A prison inmate has the same legal status as any other parent/guardian.

So a serving prisoner may apply for parenting orders or orders involving guardianship disputes. A prisoner may also defend applications for such orders.

If a Family Court judge (or registrar) agrees that the interests of justice require the prisoner to attend court in person, the prisoner may have to pay the reasonable expenses incurred in facilitating this. I say ‘may’ because I do not accept that this is compulsory in every instance.

I have been told that such costs are recoverable from Legal Aid as a disbursement. From a colleague’s recent experience, the main difficulty seems to be in obtaining timely information from the prison as to the amount that needs to be deposited.

This will be a greater challenge in non-urgent Care of Children Act proceedings where, in initial stages, parties are required to represent themselves and cannot have lawyers acting for them, and are not eligible for legal aid.

Section 65 of the Corrections Act 2004 specifies that, in a civil proceeding (i.e. not a criminal proceeding), any person who applies for an order to produce the prisoner to court must pay those costs.

Contrary to the belief of some practitioners and judicial officers, the statute does not say that the prisoner must pay the costs. It imposes the obligation on the party who applies to have the prisoner brought to court.

The prisoner could be needed as a witness, rather than as a party. If a witness is required for cross-examination, it is the party who filed the witness’s affidavit who becomes responsible for ensuring the witness is available for cross-examination. This is usually done by applying to the court for a witness summons, and then serving the summons along with specified witness expenses.

The order to produce a prisoner is similar to that summons. It is the party who seeks to rely on the prisoner’s evidence who will apply for the order to produce the prisoner. It may indeed be the prisoner, but only if they are a party to the proceedings.

I am aware of two recent cases – both involving prisoners who were parties to the proceedings – where neither party applied to the court for an order to produce the prisoner.

In the first case, I suggested that the court could make an order of its own motion, if the judge considered it necessary in the interests of justice for the prisoner to be present. (The judge declined. It was too soon to say whether the prisoner’s attendance was required.)

In the second case, the presiding judge made the order so that the hearing could proceed, and minuted the expectation that the prisoner would pay the relevant costs.

With great respect to the presiding judge, I consider the latter minute may have been misguided.

The statute only requires ‘the person applying’ to pay the costs.

If the order is made on the court’s initiative, that section ought not to apply.

At least, that’s my interpretation. I confess I have not (yet) checked for any case law on this. One day, in my spare time, just for fun,….

Cheryl Simes (Kiwilaw)

(Originally posted on 13 December 2015. Now transferred to a different page.)